First Department Holds that Privacy-Restricted Facebook Content Is Discoverable

PERSONAL INJURY ACTION – FACEBOOK CONTENT – DISCOVERY
Patterson v. Turner Constr. Co.
(1st Dept., decided 10/27/2011)

Learned of this decision from one of my Google Scholar email alerts regarding the Romano v. Steelcase decision. 

In his personal injury action against the defendant, plaintiff claimed damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life.  Defendant sought discovery of all of plaintiff's Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived.  When plaintiff declined to produce such records, defendant moved to compel plaintiff to provide an authorization allowing Facebook to release such records.  The motion court (New York County Supreme Court Justice Jeffrey K. Oing) granted defendant's motion insofar as ordering plaintiff to sign an authorization for all his Facebook records, but deferred determination on defendant's motion to compel to the extent of directing plaintiff to produce his Facebook records for an in camera review.  Plaintiff appealed. 

In unanimously REVERSING the order compelling production of all Facebook records, the First Department held:

Although the motion court's in camera review established that at least some of the discovery sought "will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Abrams v Pecile, 83 AD3d 527, 528 [2011] [internal quotation marks and citation omitted]), it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action (see Offenback v L.M. Bowman, Inc., 2011 WL 2491371, *2, 2011 US Dist LEXIS 66432, *5-8 [MD Pa 2011]). Accordingly, we reverse and remand for a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.

The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access (Romano v Steelcase Inc., 30 Misc 3d 426, 433-434 [2010]), just as relevant matter from a personal diary is discoverable (see Faragiano v Town of Concord, 294 AD2d 893, 894 [2002]).

As I discuss during my social media presentations, Facebook, MySpace and their ilk will no longer produce content of their user's accounts pursuant to civil subpoenas, leaving parties wishing to obtain such content from privacy-protected accounts limited to obtaining such content either from the users directly or from the providers with the user's authorization.